When a Government Agency Overreaches

JON MELCHI | Aug 01, 2011

When the Employee Free Choice Act or “Card Check,” as many referred to it, failed in the last Congress, many folks breathed an extreme sigh of relief. There was the belief in the business community that they had avoided the overreaching and damaging labor legislation and that it would vanish for the foreseeable future. Even early in 2011, labor relations dominated the discussion of governors, particularly Wisconsin Gov. Scott Walker, who decided to take on Public Employee Unions. Labor unions looked to be on the ropes — a drastic fall from the previous year when a confident President Obama seemed all but sure of signing Card Check into law. However, the unions and the Obama Administration had an ace in their back pocket, the National Labor Relations Board (NLRB).

The NLRB was established in 1935 as an independent federal agency, responsible for overseeing union elections and investigating and stopping unfair labor practices. The NLRB is governed by President appointees, followed by confirmation by the Senate. This all seems straightforward enough, but as most of you know, few things in Washington, D.C., are that.

The NLRB recently appeared in the news because of its case against Boeing. Headquartered in the state of Washington, Boeing opted to open a new factory and run its new product line in South Carolina, a right-to-work state, while maintaining its current operations in Washington, which is not a right-to-work state. Boeing constructed its new plant in Charleston, S.C., hired 1,000 employees and planned to begin production later this summer. Not so fast, said the NLRB, who said that by building a new factory in a right-to-work state, Boeing was retaliating against the union employees at its original factory. Keep in mind that Boeing had not laid off any employees at that location and had even pledged to keep the plant free of layoffs through 2012, which in this economy is a difficult task.

Do you want the NLRB and labor unions deciding where you can locate your businesses? I don't. Keep in mind that Boeing could have avoided this entire scenario by moving the plant out of the country but chose to keep its plant in the United States and put Americans to work.

The NLRB even embraced social media as a method of advancing its agenda. One recent case had an employee bad-mouthing his employer on Facebook; when the employer cited this as one of the reasons, but not the sole reason, for the employee's termination, the NLRB ruled that the employee was simply “discussing the terms and conditions of employment,” which made it protected language and, thus, illegal grounds for termination.

Even the states are feeling the heat from the NLRB. Voters in Arizona and South Dakota recently passed laws that would protect a worker's rights to a secret ballot; the NLRB filed suits against those states, saying they have no legal right to keep their right-to-ballot privacy and the right to be free of workplace intimidation. By taking this position, the NLRB has not only challenged the powers of the states to protect their employees, they have implicitly endorsed “card check.”

These are just a few of the major issues that the NLRB is working on. However, there are plenty more, including workplace signage and posting requirements, that are bound to catch your attention in the near future. It is vital to our industry and to businesses across the country that we continue to speak out against the regulatory agencies that overreach and threaten our economy and livelihood.